The Federal Court has determined that a bargaining representative can be appointed by an employer to bargain for agreements under the Fair Work Act without any formal appointment documents being drawn up. Under the Act, an appointment must be "in writing", including the date of the appointment. The Court has determined that so long as the date of the appointment can be discerned from the document, the appointment does not need to have any particular formality. It must also be in a form that can (on request) be given to an employee's bargaining representative.

In Jones –v– QTAC (No 2) [2010] FCA 399 (29 April 2010), Justice Collier determined that the Chief Executive Officer (Ms Jones) of the employer (QTAC) had been appointed as a bargaining representative for enterprise bargaining negotiations. QTAC argued that it had not made the appointment at all, but the Court found appointment was made by a combination of Board minutes and a letter to the employee bargaining representative (the ASU) which each mentioned that Ms Jones would act as QTAC's bargaining representative. That was, for the Court, enough to amount to an appointment in writing.

The case arose because Ms Jones argued that a subsequent bullying investigation initiated by QTAC was motivated by the ASU's attitude to her actions as QTAC's bargaining representative. In effect, she argued that the ASU engineered the investigation to ensure her capacity to act as an effective bargaining representative was blunted. The Court did not agree with this second argument. It determined the initiation of a bullying investigation was not because of her "workplace right" (that is, status as a bargaining representative) but simply because QTAC legitimately believed that it had an obligation to deal with the bullying complaints it had received, and chose to discharge this obligation by conducting an investigation. Evidence of subjective reasons for taking action is relevant in deciding what motivated the employer.

A key part of successful negotiations is to use the good faith bargaining obligations to try to ensure that other bargaining representative place only justified and reasoned positions on the table for consideration. All bargaining representatives owe each other the obligation to conduct themselves in line with the good faith bargaining obligations. The accidental appointment of an individual means employee bargaining representatives may not recognise they owe those obligations to the employer's representative.

Key points:

  • Documents dealing with the bargaining process can amount to a "written instrument" appointing an individual as the employer's bargaining representative, although the employer itself continues to be its own bargaining representative.
  • An appointment as a bargaining representative can also be revoked by "written instrument". An unintentional revocation of the appointment might occur without any formality. Care needs to be taken when corresponding with other bargaining representatives.
  • Negotiating an enterprise agreement under the Fair Work Act deserves a well thought-out strategy. Deliberate appointment of a bargaining representative (either internal or external) who can take best advantage of the good faith bargaining obligations and be a channel for information is a key consideration. Accidental appointment of an unsuitable or inexperienced person may mean this advantage is lost.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.